"Reverse
Racism, or How the Pot Got To Call the Kettle Black"By Stanley Fish, from The Atlantic Monthly, November 1993

SHOULD
RACIAL PREFERENCE BE GRANTED
TO BLACKS AND OTHER MINORITIES AS A REMEDY
FOR DISADVANTAGES DUE TO PAST DISCRIMINATION?

YES!Professor STANLEY FISH, in standard type: To argue that affirmative
action, which gives preferential treatment to disadvantaged minorities
as part of a plan to achieve social equality, is morally no different
from the discrimination that created the disadvantages in the first
place, is a travesty of reasoning. Merely to ban such discrimination
would be an inadequate response to the disadvantages it produced.

NO!Interspersed REBUTTAL by Curtis Crawford, in italics:
Although anti-black discrimination in America has been far worse than
anti-white discrimination, both violate the moral right not to be discriminated
against based on race. When people have been robbed, we do not authorize
the victims to rob in return, or license others to steal in their behalf.
Nor should racial discrimination be authorized as a remedy for racial
discrimination.

"Reverse Racism"

I take my text
from George Bush, who, in an address to the United Nations on September
23, 1991, said this of the UN resolution equating Zionism with racism:
"Zionism . . . is the idea that led to the creation of a home for the
Jewish people. . . . And to equate Zionism with the intolerable sin
of racism is to twist history and forget the terrible plight of Jews
in World War II and indeed throughout history." What happened in the
Second World War was that six million Jews were exterminated by people
who regarded them as racially inferior and a danger to Aryan purity.
What happened after the Second World War was that the survivors of that
Holocaust established a Jewish state--that is, a state centered on Jewish
history, Jewish values, and Jewish traditions: in short, a Jewocentric
state. What President Bush objected to was the logical sleight of hand
by which these two actions were declared equivalent because they were
both expressions of racial exclusiveness. Ignored, as Bush said, was
the historical difference between them--the difference between a program
of genocide and the determination of those who escaped it to establish
a community in which they would be the makers, not the victims, of the
laws.

An
argument as to whether Zionism is a kind of racism is meaningless
unless the two terms are defined. The brief excerpt from President
Bush's address defines neither.

Only if racism
is thought of as something that occurs principally in the mind, a falling-away
from proper notions of universal equality, can the desire of a victimized
and terrorized people to band together be declared morally identical
to the actions of their would-be executioners. Only when the actions
of the two groups are detached from the historical conditions of their
emergence and given a purely abstract description can they be made interchangeable.
Bush was saying to the United Nations, "Look, the Nazis' conviction
of racial superiority generated a policy of systematic genocide; the
Jews' experience of centuries of persecution in almost every country
on earth generated a desire for a homeland of their own. If you manage
somehow to convince yourself that these are the same, it is you, not
the Zionists, who are morally confused, and the reason you are morally
confused is that you have forgotten history."

Certainly,
"the desire of a victimized and terrorized people to band together"
is not "morally identical to the actions of their would-be executioners."
What will Professor Fish infer from this premise?

A KEY DISTINCTION

What
I want to say, following Bush's reasoning, is that *a similar forgetting
of history has in recent years allowed some people to argue, and argue
persuasively, that affirmative action is reverse racism.*

* The
argument against affirmative action usually calls it "reverse
discrimination, not "reverse racism." Prof. Fish muddles concepts
by confusing "discrimination" with "racism." I suggest that "discrimination"
is a difference in treatment, usually favoring one person at the
expense of another. "Racial discrimination" is a difference in
treatment based on race or ethnicity. "Preferential treatment"
is discrimination as experienced by the person favored rather
than the person disfavored. Thus, "preferential treatment" based
on race is "racial discrimination." On the other hand, "racism"
is the belief that one's own race is superior to other races and
thereby entitled to rule over them. Racial discrimination is an
action; racism, an attitude. Neither presupposes the other. Many
who actually discriminate are not racists, and some who are racists
do not actually discriminate.

To label
affirmative action "reverse discrimination" does not forget history.
On the contrary, the label invokes the nation's consensus, enshrined
in the state and federal civil rights statutes of the 1950s and
'60s, that no person in the United States should be subjected
to racial discrimination in education, employment, government
facilities, privately-owned public accommodations, housing, voting
registration, etc.

The very phrase
Reverse Racism contains the argument in exactly the form to which Bush
objected: In this country whites once set themselves apart from blacks
and claimed privileges for themselves while denying them to others.
*Now, on the basis of race, blacks are claiming special status and reserving
for themselves privileges they deny to others.* **Isn't one as bad as
the other? The answer is no.**

* Most
reverse discrimination is practiced in behalf of racial
minorities, not by them. The practitioners include public
and private universities, government agencies and private industry.
It is true, of course, that such policies invite minorities to
discriminate in behalf of themselves.

** Two
instances of racial discrimination, though not equally bad, may
both be wrong. Just as two instances of theft, fraud, embezzlement,
assault or rape, though not equally bad, may both be wrong.

One can see why
by imagining that it is not 1993 but 1955, and that we are in a town
in the South with two more or less distinct communities, one white and
one black. No doubt each community would have a ready store of dismissive
epithets, ridiculing stories, self-serving folk myths, and expressions
of plain hatred, all directed at the other community, and all based
in racial hostility. Yet to regard their respective racisms—if that
is the word--as equivalent would be bizarre, for the hostility of one
group stems not from any wrong done to it but from its wish to protect
its ability to deprive citizens of their voting rights, to limit access
to educational institutions, to prevent entry into the economy except
at the lowest and most menial levels, and to force members of the stigmatized
group to ride in the back of the bus. The hostility of the other group
is the result of these actions, and whereas hostility and racial anger
are unhappy facts wherever they are found, a *distinction must surely
be made between the ideological hostility of the oppressors and the
experience-based hostility of those who have been oppressed.*

* This
repeats the undisputed premise introduced in the first two paragraphs.
The fallacies in Prof. Fish's argument are not in this premise,
but in the conclusions he derives from it.

Not to make that
distinction is, adapting George Bush's words, to twist history and forget
the terrible plight of African-Americans in the more than 200 years
of this country's existence. Moreover, to equate the efforts to remedy
that plight with the actions that produced it is to twist history even
further. Those efforts, designed to redress the imbalances caused by
long-standing discrimination, are called affirmative action; to argue
that affirmative action, which gives preferential treatment to disadvantaged
minorities as part of a plan to achieve social equality, is no different
from the policies that created the disadvantages in the first place
is a travesty of reasoning.

The racial
discrimination that long afflicted African-Americans was certainly
far worse than the preferential treatment that now seeks to better
their condition. Nevertheless, both are racial discrimination,
which is banned in a host of state and federal statutes. Here
are three key provisions of the U.S. Civil Rights Act of 1964:

§ 201
(a). All persons shall be entitled to the full and equal enjoyment
. . . of any place of public accommodation . . . without discrimination
or segregation on the ground of race, color, religion, or national
origin.

§ 601.
No person in the United States shall, on the ground of race, color
or national origin, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance.

§ 703
(a). It shall be an unlawful employment practice for an employer
–(1) to fail or refuse to hire or to discharge . . . or otherwise
to discriminate against any individual . . . because of such individual's
race, color, religion, sex or national origin.

Note that
the right in these clauses not to be racially discriminated against
belongs equally to all persons, regardless of race, white
no less than nonwhite.

That a
class of actions is forbidden by a moral or legal rule does not
mean that every action that violates the rule is equally harmful
or equally bad. The rule equates the actions only in the sense
that they are equally forbidden. From a thousand possible examples,
consider the rule against theft. Robbing a poor person of a large
sum ordinarily does more harm than robbing a rich person of a
small sum, but both actions violate the rule against theft, and
are equally forbidden.

No one
denies Prof. Fish's point that racial discrimination as affirmative
action, favoring blacks over whites, has been less bad than historical
racial discrimination, favoring whites over blacks. But the fact
that something is less bad does not make it good. If Prof. Fish
believes that racial discrimination is a positive good when used
to redress "the imbalances caused by long-standing discrimination"
in order "to achieve social equality," he should say so and tell
us why.

Reverse Racism
is a cogent description of affirmative action only if one considers
the cancer of racism to be morally and medically indistinguishable from
the therapy we apply to it. A cancer is an invasion of the body's equilibrium,
and so is chemotherapy; but we do not decline to fight the disease because
the medicine we employ is also disruptive of normal functioning. Strong
illness, strong remedy: the formula is as appropriate to the health
of the body politic as it is to that of the body proper.

This
analogy with chemotherapy forthrightly suggests the destructive
impact of reverse discrimination, but is it persuasive? Chemotherapy,
though destroying other cells, may rid the body of cancer cells,
at least for a time. Whereas reverse discrimination, though counteracting
past discrimination, multiplies, by its actions and example, present
and future discrimination.

At this point someone
will always say, "But two wrongs don't make a right; *if it was wrong
to treat blacks unfairly, it is wrong to give blacks preference and
thereby treat whites unfairly."* This objection is just another version
of the forgetting and rewriting of history. The work is done by the
adverb "unfairly," which suggests two more or less equal parties, one
of whom has been unjustly penalized by an incompetent umpire. But blacks
have not simply been treated unfairly; they have been subjected first
to decades of slavery, and then to decades of second-class citizenship,
widespread legalized discrimination, economic persecution, educational
deprivation, and cultural stigmatization. **They have been bought, sold,
killed, beaten, raped, excluded, exploited, shamed, and scorned for
a very long time.** The word "unfair" is hardly an adequate description
of their experience, and ***the belated gift of "fairness" in the form
of a resolution no longer to discriminate against them legally is hardly
an adequate remedy for the deep disadvantages that the prior discrimination
has produced.*** When the deck is stacked against you in more ways than
you can even count, it is small consolation to hear that you are now
free to enter the game and take your chances.

* Making
the challenge more specific: If it was wrong to give whites preference,
discriminating against blacks, it is wrong to give blacks preference,
discriminating against whites.

** Let's
be clear who "They" are. The blacks receiving racial preference
in the last decade of the 20th century have not been "bought,
sold or killed." If they have been "beaten or raped," it was more
likely by other blacks. Whether their lives have much or more
than others of being "excluded, exploited, shamed, and scorned"
is not self-evident. On the other hand, although a goodly number
of their ancestors were not black, most of their grandparents
resided in the segregated South and many of their great, great
grandparents were slaves.

*** I
agree with Prof. Fish, that "a resolution no longer to discriminate"
against blacks (as in the civil rights laws) is not "an adequate
remedy for the deep disadvantages that the prior discrimination
has produced." Let the disadvantages be specified, and appropriate
remedies considered.

A TILTED FIELD

The same
insincerity and hollowness of promise infect another formula that is
popular with the anti-affirmative-action crowd: the formula of the level
playing field. Here the argument usually takes the form of saying "It
is undemocratic to give one class of citizens advantages at the expense
of other citizens; the truly democratic way is to have a level playing
field to which everyone has access and where everyone has a fair and
equal chance to succeed on the basis of his or her merit." Fine words--but
they conceal the facts of the situation as it has been given to us by
history: *the playing field is already tilted in favor of those by whom
and for whom it was constructed in the first place.* **If mastery of
the requirements for entry depends upon immersion in the cultural experiences
of the mainstream majority, if the skills that make for success are
nurtured by institutions and cultural practices from which the disadvantaged
minority has been systematically excluded,** if the language and ways
of comporting oneself that identify a player as "one of us" are alien
to the lives minorities are forced to live, then words like "fair" and
"equal" are cruel jokes, for what they promote and celebrate is an institutionalized
unfairness and a perpetuated inequality. The playing field is already
tilted, and the resistance to altering it by the mechanisms of affirmative
action is in fact a determination to make sure that the present imbalances
persist as long as possible.

* The
alleged tilt of the playing field, "in favor of those by whom
and for whom it was constructed in the first place," has not stopped
Jewish and Asian Americans from scoring as well or better than
the alleged tilters.

** Racially
segregated public schools would be prime examples of institutions
that supposedly exclude minority students from the "cultural experiences
of the mainstream majority." No one denies that such schools have
been generally inferior and account for some of the black/white
gap in academic performance. But for how much of the gap? In 1964,
Congress directed the U.S. Commissioner of Education to "conduct
a survey and make a report . . . concerning the lack of availability
of equal educational opportunities for individuals by reason of
race, color, religion or national origin in public educational
institutions at all levels . . ." Civil Rights Act of 1964, §
402.

When completed,
the survey and report were considered the second largest U.S.
social science research project ever undertaken. The survey covered
570,000 school pupils, 60,000 teachers, and 4,000 schools in great
detail.

The qualitative
differences between black and white schools turned out to be smaller
than expected. Here are a few examples. The comparisons are presented
by showing the percentage of black or white students attending
elementary or secondary schools with a given characteristic. (These
examples are from James S. Coleman et al., Equal Educational
Opportunity, Volume 1,[EEO 1] Tables 1-4, 6a, 6b, and
2.21.9., Washington, D.C.: 1966.)

The impact
of qualitative differences in schools was also smaller than expected.
The report concluded that, when non-school factors are statistically
controlled, "it appears that differences between schools account
for only a small fraction of differences in pupil achievement."
EEO 1, pp 21-22. The relative insignificance of the school
effect is indicated by a table showing median test scores for
black and white first and twelfth graders. The average gap of
9.3 standardized points between the two races at the beginning
of first grade is 85% as large as the gap of 10.9 points at the
beginning of twelfth grade. EEO 1, Table 9, p 20. Thus,
a "small fraction" of the gap may reasonably be attributed to
inferior schools, but the greater part was already there the first
day of class.

Prof.
Fish's assumption that institutions such as racially segregated
schools were producing the gap in the academic performance of
black and white college and professional school applicants is
thus robustly contradicted by comprehensive data that had been
publicly available long before he wrote. He will not argue that
the degree of segregation or the relative inferiority of predominantly
black schools had increased between 1965 and 1993.

One way of tilting
the field is the Scholastic Aptitude Test. This test figures prominently
in Dinesh D'Souza's book Illiberal Education (1991), in which
one finds many examples of white or Asian students denied admission
to colleges and universities even though their SAT scores were higher
than the scores of some others — often African-Americans — who were
admitted to the same institution. This, D'Souza says, is evidence that
as a result of affirmative-action policies colleges and universities
tend "to depreciate the importance of merit criteria in admissions."
D'Souza's assumption--and it is one that many would share--is that the
test does in fact measure merit, with merit understood as a quality
objectively determined in the same way that body temperature can be
objectively determined.

The academic
"merit" measured by the SAT is the verbal and mathematical reasoning
ability that students need for academic work. In doing this, the
test has been a good predictor of college performance. According
to studies by the College Board, which administers the SAT, its
correlation with first-year college grades is 52% at moderately
selective colleges and 61% at highly selective colleges. (A correlation
of 100% would mean a perfect predictor; 0%, a total failure.)
Although these studies occurred after Prof. Fish's essay, they
are consistent with the data available to him.

In fact, however,
the test is nothing of the kind. Statistical studies have suggested
that *test scores reflect income and socioeconomic status.* It has been
demonstrated again and again that scores vary in relation to cultural
background; **the test's questions assume a certain uniformity in educational
experience and lifestyle and penalize those who, for whatever reason,
have had a different experience and lived different kinds of lives.**
In short, ***what is being measured by the SAT is not absolutes like
native ability and merit but accidents like birth, social position,
access to libraries, and the opportunity to take vacations or to take
SAT prep courses.***

* True,
but the correlation between SAT scores and socioeconomic status
is not dominant: students from the same family or at the same
socioeconomic level have widely different scores; white students
from low income families do as well as black students from high
income families.

** Prof.
Fish is accusing the SAT of cultural bias against blacks and other
racial minorities. If this were so, it would be easy to prove.
One need only demonstrate that it underpredicts minority performance
as compared to whites. Fish does not make this claim, nor would
the facts sustain him if he had. Indeed, William Bowen and Derek
Bok, in their pro-affirmative action book, The
Shape of the River,
conclude that the SAT overpredicts black college performance.

*** "What
is being measured by the SAT" is academic skills that are highly
predictive of academic performance and happen also to have some
correlation with the "accidents" named by Prof. Fish. Does he
deny the relevance of academic skills to academic performance?
Does he believe that selective institutions should ignore SAT
scores in deciding which applicants are most able to learn what
the college has to teach?

Furthermore, as
David Owen notes in None of the Above: Behind the Myth of Scholastic
Aptitude (1985), *the "correlation between SAT scores and college
grades .... is lower than the correlation between weight and
height;* in other words you would have a better chance of predicting
a person's height by looking at his weight than you would of predicting
his freshman grades by looking only at his SAT scores." Everywhere you
look in the SAT story, the claims of fairness, objectivity, and neutrality
fall away, to be replaced by suspicions of specialized measures and
unfair advantages.

* Notice
that Prof. Fish does not quantify either correlation. I do not
know the correlation between weight and height, but if it is more
than 60%, it is higher than I realized.

Why does
he trash the SAT? Lower minority SAT scores do not prevent colleges
from granting the preferential admissions that Prof. Fish favors.
Indeed, the preference consists precisely in accepting minority
applicants with test scores, grades and/or other academic qualifications
that would be unacceptable in white applicants. If, like many
supporters of affirmative action, Prof. Fish pretended that no
preference is involved, one could understand his hostility to
the SAT. But he frankly admits that affirmative action involves
racial preference. It is true that, by quantifying the differences
in admission standards, it makes them harder to deny or ignore.
Perhaps he hates the test not for exposing the existence of preference,
but its magnitude.

Against this background
a point that in isolation might have a questionable force takes on a
special and even explanatory resonance: *the principal deviser of the
test was an out-and-out racist.* In 1923 Carl Campbell Brigham published
a book called A Study of American Intelligence, in which, as
Owen notes, he declared, among other things, that we faced in America
"a possibility of racial admixture . . . infinitely worse than that
faced by any European country today, for we are incorporating the Negro
into our racial stock, while all of Europe is comparatively free of
this taint." Brigham had earlier analyzed the Army Mental Tests using
classifications drawn from another racist text, Madison Grant's The
Passing of the Great Race, which divided American society into four
distinct racial strains, with Nordic, blue-eyed, blond people at the
pinnacle and the American Negro at the bottom. Nevertheless, in 1925
Brigham became a director of testing for the College Board, and developed
the SAT. So here is *the great SAT test, devised by a racist in order
to confirm racist assumptions, measuring not native ability but cultural
advantage, an uncertain indicator of performance, an indicator of very
little except what money and social privilege can buy.* And it is in
the name of this mechanism that we are asked to reject affirmative action
and reaffirm "the importance of merit criteria in admissions."

* Having
failed to substantiate his criticism of the SAT, Prof. Fish yells
"racist." Carl Brigham was indeed the "principal deviser" of the
SAT, and held for a time the racial opinions Fish attributes to
him. Did this make him an "out-and-out racist"? Not by my definition
above, which requires the belief not only that one's own race
is superior, but also that it should rule over others. Moreover,
by 1930 Prof. Brigham had dropped the racial conclusions of his
earlier research, and had decided that the SAT was unable to disentangle
the effects of innate intelligence and of environmental and developmental
factors.

The sticking
point for Prof. Fish is the notion of differences in innate
capacity. At least where scholastic aptitude is concerned,
he apparently believes that the only significant differences between
individuals are differences that "money and social privilege can
buy." Since inborn talent cannot be bought, he must believe that
individuals do not differ significantly in their inborn talent
for academic work. I suspect, on the contrary, that most educators
who have assigned the SAT, and most students who have taken it,
assume that human beings differ substantially in their innate
capacity for verbal and mathematical reasoning, and that these
differences affect SAT scores. I share this assumption. To deny
it is to disregard the everyday experience of great differences
in the abilities of children living in the same family or at the
same economic and social level, and the scientific studies of
identical twins, reared apart, who are more like each other than
the families where they grew up.

Most people
readily accept that they were not born as smart as Shakespeare
or Einstein. The problem arises when standardized test scores
indicate that one racial or ethnic group, on average, is smarter
than another. This must be why Prof. Fish hates the SAT. Although
the gap between black and white scores has decreased, it remains
substantial. Does this gap demonstrate a group difference in innate
capacity? Not necessarily, since it might be the result of
systemic environmental or cultural factors. But the gap is stubborn,
and not unique. If the scores of Jewish students were counted
separately, their verbal SAT average might be as far above whites
as blacks are below. There is no natural law requiring that the
mean innate capacity for verbal and mathematical reasoning be
the same in every racial or ethnic group.

Near the
end of the section, "A Key Distinction," Prof. Fish declared that
a national resolution to stop discriminating against blacks was
an insufficient remedy for the disadvantageous effects of prior
discrimination. I agreed, hoping that he would specify the disadvantages
he had in mind, and then the remedies he deemed appropriate. In
the next section, "The Tilted Field," he has named some general
cultural factors that variously affect minority groups and has
roundly condemned the SAT, but he has not specified the black
disadvantages he has in mind, the extent to which they result
from past discrimination, or the best remedies. We know that he
favors affirmative action for blacks, but whether this is the
right solution depends in part on a clear understanding of the
problem.

Thus far,
in three important respects, Prof. Fish's understanding has proved
mistaken. Contrary to his assumptions: (1) racially segregated
schools have not been a substantial cause of inferior black academic
performance in recent decades; (2) the SAT does a reasonably good
job of assessing verbal and mathematical skills, and predicting
college grades; (3) the SAT is not biased against blacks: indeed,
it overpredicts their college performance.

THE REALITY
OF DISCRIMINATION

Nevertheless,
there is at least one more card to play against affirmative action,
and it is a strong one. Granted that the playing field is not level
and that access to it is reserved for an already advantaged elite, the
disadvantages suffered by others are less racial--at least in 1993--than
socioeconomic. Therefore shouldn't, as D'Souza urges, "universities
. . . retain their policies of preferential treatment, but alter their
criteria of application from race to socioeconomic disadvantage," and
thus avoid the unfairness of current policies that reward middle-class
or affluent blacks at the expense of poor whites? One answer to this
question is given by D'Souza himself when he acknowledges that *the
overlap between minority groups and the poor is very large--a point
underscored by the former Secretary of Education Lamar Alexander, who
said, in response to a question about funds targeted for black students,
"Ninety-eight percent of race-specific scholarships do not involve constitutional
problems." He meant, I take it, that 98 percent of race-specific scholarships
were also scholarships to the economically disadvantaged.*

* The
"overlap between minority groups and the poor" is large, but nowhere
near 98%. Professor Thomas Kane gives the figures for American
high-school graduates in 1992, living in families with incomes
below $20,000 a year. Only 47% were black or Hispanic, while 53%
were white or other non-Hispanic. If college admissions preference
were based on this criterion of economic disadvantage, without
regard for academic qualifications, blacks and Hispanics would
receive half the slots. But the ratio would fall if SAT scores
were a factor. The proportion of high school graduates from such
families whose SAT scores were in the top tenth percentile was
only 17%. Thus, most preferences by selective colleges based solely
on economic disadvantage would go to whites and Asians. [See Christopher
Jencks and Meredith Phillips, eds, The
Black-White Test Score Gap,
Brookings Institution Press, Washington, D.C.: 1998, p 449.]

Still, the other
two percent--nonpoor, middle-class, economically favored blacks--are
receiving special attention on the basis of disadvantages they do not
experience. What about them? The force of the question depends on the
assumption that in this day and age race could not possibly be a serious
disadvantage to those who are otherwise well positioned in the society.
But the lie was given dramatically to this assumption in a 1991 broadcast
of the ABC program PrimeTime Live. In a stunning fifteen-minute segment
reporters and a camera crew followed two young men of equal education,
cultural sophistication, level of apparent affluence, and so forth around
St. Louis, a city where neither was known. The two differed in only
a single respect: one was white, the other black. But that small difference
turned out to mean everything. In a series of encounters with shoe salesmen,
record-store employees, rental agents, landlords, employment agencies,
taxicab drivers, and ordinary citizens, the black member of the pair
was either ignored or given a special and suspicious attention. He was
asked to pay more for the same goods or come up with a larger down payment
for the same car, was turned away as a prospective tenant, was rejected
as a prospective taxicab fare, was treated with contempt and irritation
by clerks and bureaucrats, and in every way possible was made to feel
inferior and unwanted.

The *inescapable
conclusion* was that alike though they may have been in almost all respects,
one of these young men, because he was black, would lead a significantly
lesser life than his white counterpart: he would be housed less well
and at greater expense; *he would pay more for services and products
when and if he was given the opportunity to buy them;* he would have
difficulty establishing credit; the first emotions he would inspire
on the part of many people he met would be distrust and fear; his abilities
would be discounted even before he had a chance to display them; and,
above all, the treatment he received from minute to minute would chip
away at his self-esteem and self-confidence with consequences that most
of us could not even imagine. As the young man in question said at the
conclusion of the broadcast, "You walk down the street with a suit and
tie and it doesn't matter. Someone will make determinations about you,
determinations that affect the quality of your life."

* "Inescapable
conclusion"? From one television report? Has this veteran scholar
no higher standards for the data necessary to establish solid,
realistic empirical judgments? The country is full of stores selling
food, appliances and clothing at standard prices. Does Prof. Fish
truly believe that blacks have to "pay more for services and products"
in these stores and may not be "given the opportunity to buy them"?

Still,
after discounting the exaggerations, I assume that discrimination
based on race and ethnicity is persistent and widespread: not
only white against black, but black against white, native against
immigrant, immigrant against native or against immigrant of different
ethnicity, black against Hispanic or Asian, Hispanic against black
or Asian or white, Asian against black or Hispanic or white, white
against white in behalf of black, Hispanic or American Indian.
Nor is this list exhaustive.

Present-day
racial discrimination is certainly a disadvantage for all who
suffer it. But if that is the problem, is additional discrimination—by
higher education, corporate enterprise and government—a solution?
To counteract wrongful discrimination, Prof. Fish would have America
command and teach its citizens that racial or ethnic discrimination
should proceed against some groups (whites, also Asians?) and
cease against others (blacks, also Hispanic and Native Americans?)
Does he believe that a nation can successfully teach its citizens
that racial discrimination is unjust, while thus fostering it?

In 1992,
a low-crime year, the U.S. Department of Justice estimated that
Americans had suffered more than 28 million cases of theft: burglary,
larceny or robbery. As a remedy, should we have authorized the
victims to steal in return, or licensed others to steal in their
behalf? The same year saw more than 5 million cases of assault:
simple or aggravated. To feel the wrong in just a handful of these
cases must render a decent person miserable and furious. Yet we
are wise enough not to remedy assault with more assault. [The
victimization figures are at page 203 of Statistical Abstract
of the United States 1994.]

The virtue
of racial nondiscrimination is not inborn: it is a habit, not
easily formed, that must be cultivated. America has made great
progress against the vices of ethnic discrimination in the 19th
Century, and of racial discrimination in the 20th Century. Around
the world and throughout history, nations that failed to curb
these vices have borne witness to their cruel and heartbreaking
consequences.

Of course, the
same determinations are being made quite early on by kindergarten teachers,
grade school principals, high school guidance counselors, and the like,
with results that cut across socioeconomic lines and place young black
men and women in the ranks of the disadvantaged no matter what the bank
accounts of their parents happen to show. Racism is a cultural fact,
and although its effects may to some extent be diminished by socioeconomic
variables, those effects will still be sufficiently great to warrant
the nation's attention and thus the continuation of affirmative-action
policies. This is true even of the field thought to be dominated by
blacks and often cited as evidence of the equal opportunities society
now affords them. I refer, of course, to professional athletics. But
national self-congratulation on this score might pause in the face of
a few facts: A minuscule number of African-Americans ever receive a
paycheck from a professional team. Even though nearly 1,600 daily newspapers
report on the exploits of black athletes, they employ only seven full-time
black sports columnists. Despite repeated pledges and resolutions, major-league
teams have managed to put only a handful of blacks and Hispanics in
executive positions.

WHY ME?

When
all is said and done, however, one objection to affirmative action is
unanswerable on its own terms, and that is the objection of the individual
who says, "Why me? Sure, discrimination has persisted for many years,
and I acknowledge that the damage done has not been removed by changes
in the law. But why me? I didn't own slaves; I didn't vote to keep people
on the back of the bus; I didn't turn water hoses on civil-rights marchers.
Why, then, should I be the one who doesn't get the job or who doesn't
get the scholarship or who gets bumped back to the waiting list?"

I sympathize with
this feeling, if only because in a small way I have had the experience
that produces it. I was recently nominated for an administrative post
at a large university. Early signs were encouraging, but after an interval
I received official notice that I would not be included at the next
level of consideration, and subsequently I was told unofficially that
at some point a decision had been made to look only in the direction
of women and minorities. Although I was disappointed, I did not conclude
that the situation was "unfair," because the policy was obviously not
directed at me--at no point in the proceedings did someone say, "Let's
find a way to rule out Stanley Fish." *Nor was it directed even at persons
of my race and sex--the policy was not intended to disenfranchise white
males. Rather, the policy was driven by other considerations, and it
was only as a by-product of those considerations--not as the main goal--that
white males like me were rejected. Given that the institution in question
has a high percentage of minority students, a very low percentage of
minority faculty, and an even lower percentage of minority administrators,
it made perfect sense to focus on women and minority candidates, and
within that sense, not as the result of prejudice, my whiteness and
maleness became disqualifications.*

* Prof.
Fish argues here that racial discrimination is not "unfair" if,
free from prejudice, it serves a reasonable purpose. But what
would be a reasonable purpose? In the section, A Key Distinction,
he maintained and I agreed that barring racial discrimination
against blacks was not a sufficient remedy for the disadvantages
they had suffered from past discrimination. Building on that premise
he might have proceeded to specify these disadvantages, along
with remedies for overcoming them. But his essay has not taken
that path.

Let us,
then, for a general idea of what Fish considers a reasonable purpose,
return to the first page of the essay. There he suggests that
different treatment based on race or ethnicity is justified when
its purpose is "to redress the imbalances caused by long-standing
discrimination" in order "to achieve social equality."

Has Prof.
Fish given much thought to the scope of this doctrine and the
kinds of policies it would authorize? Of many possible applications,
let me mention three.

·

The income of African, Hispanic and Native Americans is lower
than white income. This is partly due to past discrimination
against these groups. Therefore, they should receive a substantial
discount, say 20%, on everything they buy.

·

The crime rates of African, Hispanic and Native Americans
are higher than white rates. This is partly due to past discrimination
against these groups. Therefore, different standards should
be adopted, making it harder to convict members of these groups,
and giving them lighter sentences when found guilty.

·

The proportion of African, Hispanic and Native Americans elected
to Congress and the State legislatures is smaller than their
share of the population. This is partly due to past discrimination
against these groups. Therefore, each member of these groups
should have an extra vote in any election to these offices.

If the
reader has misgivings concerning any of these proposals, let him
look to the doctrine from which they directly spring.

I can hear the
objection in advance: "What's the difference? Unfair is unfair: you
didn't get the job; you didn't even get on the short list." The difference
is not in the outcome but in the ways of thinking that led up to the
outcome. It is the difference between an unfairness that befalls one
as the unintended effect of a policy rationally conceived and an unfairness
that is pursued as an end in itself. It is the difference between the
awful unfairness of Nazi extermination camps and the unfairness to Palestinian
Arabs that arose from, but was not the chief purpose of, the founding
of a Jewish state.

THE NEW BIGOTRY

The point
is not a difficult one, but it is difficult to see when the unfairness
scenarios are presented as simple contrasts between two decontextualized
persons who emerge from nowhere to contend for a job or a place in a
freshman class. Here is student A; he has a board score of 1,300. And
here is student B; her board score is only 1,200, yet she is admitted
and A is rejected. Is that fair? Given the minimal information provided,
the answer is of course no. But if we expand our horizons and consider
fairness in relation to the cultural and institutional histories that
have brought the two students to this point, histories that weigh on
them even if they are not the histories' authors, then both the question
and the answer suddenly grow more complicated.

The sleight-of-hand
logic that first abstracts events from history and then assesses them
from behind a veil of willed ignorance gains some of its plausibility
from another key word in the anti-affirmative-action lexicon. That word
is "individual," as in "The American way is to focus on the rights of
individuals rather than groups." Now, "individual" and "individualism"
have been honorable words in the American political vocabulary, and
they have often been well employed in the fight against various tyrannies.
But like any other word or concept, individualism can be perverted to
serve ends the opposite of those it originally served, and this is what
has happened when in the name of individual rights, millions of individuals
are enjoined from redressing historically documented wrongs. How is
this managed? Largely in the same way that the invocation of fairness
is used to legitimize an institutionalized inequality. *First one says,
in the most solemn of tones, that the protection of individual rights
is the chief obligation of society. Then one defines individuals as
souls sent into the world with equal entitlements as guaranteed either
by their Creator or by the Constitution.* Then one pretends that nothing
has happened to them since they stepped onto the world's stage. And
then one says of these carefully denatured souls that they will all
be treated in the same way, irrespective of any of the differences that
history has produced. Bizarre as it may seem, individualism in this
argument turns out to mean that everyone is or should be the same. This
dismissal of individual difference in the name of the individual would
be funny were its consequences not so serious: it is the mechanism by
which imbalances and inequities suffered by millions of people through
no fault of their own can be sanitized and even celebrated as the natural
workings of unfettered democracy.

* The
"individual rights" whose protection is a major "obligation of
society" are guaranteed neither by God nor the Constitution but
by statute. When the law bans racial discrimination, theft, fraud,
embezzlement, physical assault, rape, etc., duties are
created not to perform these actions, along with corresponding
rights not to be subjected to them. Grant an individual the right
not to be robbed and you protect him not only against the wicked,
but also against the "well-intentioned," who otherwise might rob
him to advance some notion of the greater good.

Life is
full of rationalizations by which people advance their ideals
or their own advantage at others' expense. The recognition of
individual rights, a mark of civilization older than the Ten Commandments,
provides a necessary envelope of personal security. By placing
certain means out of bounds, no matter how estimable the ends
they might serve, society secures the individual's freedom to
be and to thrive.

"Individualism,"
"fairness," "merit"--these three words are continually misappropriated
by bigots who have learned that they need not put on a white hood or
bar access to the ballot box in order to secure their ends. Rather,
they need only clothe themselves in a vocabulary plucked from its historical
context and made into the justification for attitudes and policies they
would not acknowledge if frankly named.

Certainly,
the individual right not to be racially discriminated against,
the unfairness of such discrimination no matter whom the target,
and the desirability of treatment based on individual merit, are
watchwords of the opposition to racial preference. Prof. Fish
concludes by smearing this opposition as racist. Is this tactic
a backhanded admission that his arguments are weak. I think, on
the contrary, that he is confident of being right, but calculates
that the most effective means of persuading the reader is to brand
the other side with a scarlet R.

Having
agreed with Prof. Fish that disadvantages due to past discrimination
need remedies, I have wished him to be specific concerning such
disadvantages and a fitting response. Since he has not, I shall—briefly,
by way of conclusion.

The average
performance of black, Hispanic and Native Americans on standardized
ability and achievement tests, as well as in school and college
courses, is well below the national average. This disadvantage
stands as a major obstacle to success in education, business,
the professions and government. Some portion of this disadvantage—no
one knows how much—is due to past discrimination.

I propose
that summer academies be established to give high-quality, supplemental
instruction at the grade and high-school level. Primarily for
students who attend incompetent schools, the academies would be
open to anyone, regardless of race, who wished to improve his
education. The academies could be sponsored by government at the
federal, state or local level, as well as by colleges and universities.
The goals would not be racial (such as ending performance gaps
between groups), but individual (helping each student to reach
his potential). Those most benefited by this proposal would presumably
be those who start with the greatest prior disadvantage.

Thus,
although the disadvantage stems in part from racial discrimination,
the remedy need not and should not be more discrimination. I do
not claim that discrimination based on race or ethnicity is wrong
in every circumstance. It may sometimes be necessary for national
or cultural survival, as in the Zionist example cited at the beginning
of Prof. Fish's essay. But racial discrimination is ordinarily
the wrong path, which Fish offers no good reason for taking. Indeed,
if the criterion be national or cultural survival, it would be
far better served by rejecting—not condoning—racial discrimination.